ASL Alliance No 2 Pty Ltd v Frankston CC

ASL Alliance No 2 Pty Ltd v Frankston CC [2022]

VCAT 752 (7 July 2022)

Last Updated: 7 July 2022

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P11831/2021

PERMIT APPLICATION NO. 239/2021/P

CATCHWORDS

Frankston Planning Scheme; childcare centre in a residential zone; repeat appeal

principles; neighbourhood and landscape character impacts from a childcare centre;

neighbourhood character and landscape outcomes on corner allotments; traffic impacts

from a childcare centre; Frankston City Neighbourhood Character Study (Planisphere and

John Curtis Pty Ltd, 2002); Frankston Housing Strategy (Frankston City Council, 2018);

Association of Australasian Acoustical Consultants Guideline for Child Care Centre

Acoustic Assessment, Version 3.0 (September 2020).

APPLICANT

ASL Alliance No 2 Pty Ltd

Frankston City Council

RESPONSIBLE

AUTHORITY

REFERRAL

Transport for Victoria

AUTHORITY

RESPONDENTS

Kerri Rainer, Rajesh Sriperumbudur and others, Living Lifestyles

(for the over 55’s) Pty Ltd as trustee for Living Lifestyles Unit

Trust, Derinya Primary School Council & Janette Borrie, Ruwan &

Joanna Nugara

SUBJECT LAND

HEARING TYPE

137 Overport Road, Frankston South

Major Case Hearing

DATE OF

20, 21, 22 & 23 June 2022

HEARING

DATE OF ORDER

CITATION

7 July 2022

ASL Alliance No 2 Pty Ltd v Frankston CC [2022] VCAT 752

ORDER

1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act

1998, the permit application is amended by substituting for the permit application plans,

the following plans filed with the Tribunal:

Mezz Architecture

• Prepared by:

• Drawing numbers:

• Dated:

A.101 to A.103, A.201, A.301, A.401, A.402, A.501, A.601, A.701

3 May 2022

2. In application P11831/2021 the decision of the responsible authority is set aside.

3. In planning permit application 239/2021/P a permit is granted and directed to be issued

for the land at 137 Overport Road, Frankston South in accordance with the endorsed

plans and the conditions set out in Appendix A. The permit allows:

◦ Use of the land for a childcare centre

◦ To construct a building and construct or carry out works

APPEARANCES

For applicant

Graeme Peake, Barrister instructed by Jason Sumner, Town Planner

of Apex Town Planning Consultants

He called the following witnesses:

• David Crowder (Town Planner) of Ratio Consultants

• Darren Tardio (Acoustic Engineer) of Enfield Acoustics

• Leigh Furness (Traffic Engineer) of Traffix Group

• Steve Wallbrink (Landscape Architect) of Wallbrink Landscape

Architecture

For responsible

authority

Adrianne Kellock, Town Planner of Kellock Town Planning Pty Ltd

No appearance

For referral

authority

For respondents

John Ribbands, Barrister by direct brief appeared on behalf of Rajesh

Sriperumbudur and others

He called the following witnesses:

• Kathryn Morland (Town Planner) of KM Town Planning

• Cameron Ryder (Arborist) of Ryder Arboriculture &

Environment

Janette Borrie appeared in person and on behalf of the Derinya

Primary School Council

Barbara Nugara appeared on behalf of Living Lifestyles (for the over

55’s) Pty Ltd as trustee for Living Lifestyles Unit Trust

Kerri Rainer appeared in person

INFORMATION

Description of

proposal

Use and development of the land for a 95 place childcare centre.

Nature of

proceeding

Application under section 77 of the Planning and Environment Act

1987 – to review the refusal to grant a permit.

Planning scheme Frankston Planning Scheme

Zone and overlays General Residential Zone

Design and Development Overlay 1

Significant Landscape Overlay 3

Permit

requirements

Clause 32.08-2 to use land within the General Residential Zone for a

childcare centre

Clause 32.08-9 to construct a building and construct or carry out

works associated with a Section 2 use on land within the General

Residential Zone

Clause 43.02-2 to construct a building and construct or carry out

works on land to which the Design and Development Overlay applies

Clause 42.03-2 to construct a building and construct or carry out

works on land to which the Significant Landscape Overlay applies

Relevant scheme

policies and

provisions

Clauses 02, 11, 12, 13, 15, 17, 18, 19, 21, 32.08, 36.04, 42.03, 43.02,

52.06, 52.12, 53.18, 55, 65 and 71.02.

Land description

The subject site is irregular in shape although generally takes a

rectangular form. It is located on the south east corner of Overport

Road and Fontayne Court in Frankston South.

The site has a width of 23.47 metres, rear boundary of 29.57 metres,

corner splay of 8.61 metres, northern side boundary of 85.34 metres,

southern boundary of 91.44 metres and an overall area of 2,685 square

metres. A 2.44 metre wide sewerage and drainage easement extends

along the eastern boundary.

The site has a fall of approximately 4.5 metres from the south west

corner of the site to the north east corner of the site.

The subject site currently contains a single storey dwelling,

outbuilding, and includes some vegetation. It also has a single

[1]

crossover located to the Fontayne Court frontage.

Tribunal

inspection

The Tribunal inspected the site and surrounding area prior to the

hearing, on 14 June 2022

REASONS[2]

INTRODUCTION

1. This dispute centres on a proposal for a childcare centre on a site at 137 Overport Road,

Frankston South. The Frankston City Council, in considering a report from its officers to

grant a planning permit for the proposal, ultimately determined to refuse to grant a

permit. In addition, there is a relatively large and vocal proportion of the surrounding

community who are clearly opposed to the proposal. Their opposition to a childcare

centre on this site has stretched back to at least 2020 when the Tribunal previously

considered a different proposal for a childcare centre on the same site at 137 Overport

Road, Frankston South.

2. The residents that oppose this proposal have very strong and broad concerns about the

impact of a childcare centre on the surrounding neighbourhood. This is evident in terms

of the broad range of concerns raised by the residents, as well as the extent to which

their case at the Tribunal was professionally put, with the support of expert evidence.

3. In opposing this proposal, the residents are keen to emphasise the commercial nature of

the proposed childcare centre, presumably in an effort to distinguish it from the

residential use of surrounding land. The concept that residentially zoned land should be

reserved for only residential uses is a misnomer. It is not grounded in truth, either in

theory or in practice.

4. In theory, it is evident that residentially zoned land is able to be used for a range of

residential and commercial land uses. This is evident in the following purpose of the

General Residential Zone, a zone which applies to the site and surrounding

neighbourhood.

To allow educational, recreational, religious, community and a limited range of

other non-residential uses to serve local community needs in appropriate

locations.

5. I also note that the same purpose applies to the more restrictive Neighbourhood

Residential Zone, which applies in other residential neighbourhoods across metropolitan

Melbourne. In addition to this zone purpose, the Frankston Planning Scheme contains a

local policy at Clause 13.07-1L, which recognises the locational attributes of the site at

137 Overport Road, Frankston South as being suitable for a non-residential use, given

the status of Overport Road as a secondary arterial road.

6. In practice, this is a residential neighbourhood that already comprises a broad range of

non-residential land uses. Unsurprisingly, these include schools, a kindergarten and an

existing childcare centre. Other residential neighbourhoods nearby contain churches,

service stations, convenience shops, takeaway food premises and the like.

7. Further, it is evident that residential areas are often the best option for the location of

future childcare centres. The demand for large parcels of land and the price of land

within activity centres means that often commercially zoned land is not reasonably

available. Alternatively, industrial land is often not suitable given the potential for odour

and noise to impact children. That leaves residentially zoned land as the most likely

option, which is supported by the number of childcare centres across metropolitan

Melbourne that are found on residentially zoned land.

8. For these reasons, I do not regard the distinction drawn by the residents of this proposal

being a commercial use, as one that would mitigate against its approval.

9. In its previous decision, the Tribunal decided that the site was suitable for a childcare

centre, and that the design would comprise a number of acceptable aspects, including

the extent of impact on adjoining properties, and the impact on the surrounding traffic

environment. However, ultimately the Tribunal determined that a permit should not be

granted due to two reasons. Firstly, the visual prominence of the proposed building,

access ramp and car park from Fontayne Court, and the inability to appropriately

balance these built form elements with suitable areas of landscaping, consistent with the

surrounding neighbourhood character. Secondly, the failure to provide a suitable

landscape outcome across the site, noting that the proposal largely provides planting

around the perimeter of the site.

10. The key issue that is before me therefore, is whether the proposal has appropriately

responded to the previous concerns of the Tribunal, and now presents an appropriate

balance of built form and landscaping to Fontayne Court, and an appropriate landscape

response across the site. In addition, I need to be satisfied that the proposal is supported

by the varied guidance provided by the Frankston Planning Scheme. This includes an

assessment of whether the other elements of the proposal are consistent with the

Tribunal’s previous findings, and where changes are made, or where there have been

changes in the context or the relevant planning scheme controls, that the proposal is

acceptable and now presents an appropriate overall outcome.

11. For the detailed reasons set out in this decision, I make two key findings. Firstly, that the

proposal has appropriately addressed the narrow concerns previously expressed by the

Tribunal in its 2020 decision. Secondly, that the proposal is an appropriate response to

the Frankston Planning Scheme and the surrounding context, and is worthy of the grant

of a planning permit. Those detailed findings are set out below.

WHAT IS THIS PROCEEDING ABOUT?

12. ASL Alliance No 2 Pty Ltd (the ‘Applicant’) seeks to review the decision of the Frankston

City Council (the ‘Council’) to refuse to grant a permit to allow the use and development

of a 95 place child care centre on land at 137 Overport Road, Frankston South (the

‘review site’).

13. This proceeding follows an earlier decision of the Tribunal in ASL Alliance No. 2 Pty Ltd

v Frankston CC [2020] VCAT 1276 to refuse to grant a permit for a larger child care

centre, being one for 116 children. In response, a subsequent planning permit

application has been lodged, that encompasses changes that, at the very least, seek to

address the key reasons why the Tribunal previously refused to grant a permit.

14. In response the Council, when considering a recommendation from its planning officers

to grant a planning permit, has determined to refuse to grant a permit. Its grounds of

refusal raise concerns with the impact on the surrounding neighbourhood and landscape

character, and off-site amenity impacts due to the increase in traffic movements. The

Council’s grounds also state that the proposal has not appropriately responded to the

previous Tribunal decision, and the reasons set out in that for refusal of the earlier

application.

15. The proposal is also opposed by a very large number of local residents (the

‘Respondents’). In addition to the Council’s grounds, they raise concerns in relation to

the impact of increased traffic on the surrounding congested roads during school drop

off and pick up times, the likely off-site car parking demand, the impacts on existing

trees, and a range of off-site amenity impacts.

16. The issues or questions for determination are:

a. How do I approach this repeat appeal?

b. Is the proposal an appropriate built form response to the surrounding

neighbourhood and landscape character?

c. Will there be any unreasonable off-site amenity impacts?

d. Does the proposal appropriately provide for car parking and traffic movements?

17. The Tribunal must decide whether a permit should be granted and, if so, what

conditions should be applied. Having considered all submissions and evidence presented

with regard to the applicable policies and provisions of the Frankston Planning Scheme,

I have decided to set aside the Council’s decision, and direct the grant of a planning

permit subject to conditions. My reasons follow.

HOW DO I APPROACH THIS REPEAT APPEAL?

18. The preferable approach to the consideration of repeat appeals is set out in the Tribunal

decision of Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675, which includes the

following guidance:

[14] The ‘usual principles’ that have been generally adopted are outlined in

decisions such as Reichert v Banyule City Council and are sometimes

referred to (and were referred to in the hearing before me) as the “Reichert

principles”. Relevant factors to consider when reviewing an application that

is similar to a proposal that has been the subject of previous Tribunal

findings are:

• significant changes in the application itself;

• changes in the circumstances of the land and its surrounds;

• changes in planning policy; and/or

• changes in the interpretation of the facts or law relevant to the Tribunal’s consideration.

[15] Although these principles are often used to dismiss ‘classic’ repeat

appeals where the permit applicant appears to be doing little more than

forum shopping or wearing down the opposition with little material change

in the development or other circumstances, care must be taken not to apply

these principles in an over-zealous manner. There are two main reasons for

this.

[16] First, the ‘classic’ repeat appeals should be distinguished from what has

sometimes been described as ‘correcting’ repeat appeals - that is, where the

Tribunal has refused an earlier application but indicated a modified form of

development or changes that might be acceptable, and the repeat appeal

comprises a genuine attempt to address those issues. This distinction was

noted in Reichert, and is summed up in decisions such as Benc v City of

Doncaster and Templestowe, where it was stated:

In the case of a different but similar application which has been prepared in

accordance with the advice of the Board, equity or fairness demands that

considerable weight be given to the fact that the applicant has endeavoured to

accommodate suggestions as to what would be appropriate.

[17] A similar view has been expressed in decisions such as Carwoode

Pty Ltd v Cardinia SC & Ors (No 3), and Pearl Diamond #2. This latter

decision is of some interest, as the applicant contends that the

proposed four-storey development now permitted on that nearby site is

a relevant change that I should place great weight upon under the

Reichert principles.

[18] Secondly, irrespective of whether the repeat appeal is in the nature

of a ‘classic’ or ‘correcting’ repeat appeal, the role of the Tribunal is not

to determine whether the proposal before it would have satisfied the

earlier (and perhaps differently constituted) Tribunal, nor to summarily

determine the matter solely by reference to the Reichert principles.

This is a sometimes misunderstood notion. As Amoco itself indicated,

the role of the Tribunal is to still consider the new application before it

on its merits but, in doing so, to give great weight to the Tribunal’s

decision on the earlier application having regard to the usual principles

that have evolved for this purpose.

19. The proposal that is before me is an attempt to respond to the criticisms of the previous

Tribunal in the decision of ASL Alliance No. 2 Pty Ltd v Frankston CC [2020] VCAT

1276. In particular, the amended proposal now before me, has at least attempted to

address the balance of built form and landscaping that will be visible from Fontayne

Court, as well as the extent of landscaping provided across the review site. As such, this

appeal is properly categorised as a correcting repeat appeal.

20. Given this is a repeat appeal, for a similar though altered proposal, I must give weight to

the previous Tribunal decision. This approach is supported by the decision of the

Supreme Court in Zumpano v Banyule City Council [2016] VSC 420 where it remarked:

[26] Repeat applications can come in many forms. Approval may be sought

of the same use and development as was sought in a previous application.

They may contain one or more correcting features, or seek approval for a

development entirely different from that for which approval was sought in an

earlier application.

[27] In Rozen v Macedon Ranges Shire Council, the Court concluded:

The weight to be given to the various considerations which may be relevant

on the one hand, and to particular facts bearing on those considerations on

the other hand, is not fixed by the planning scheme but is essentially a matter

for the decision maker.

[28] This passage confirms that the weight to be given to the relevant

considerations, and to the particular facts bearing on those considerations, is

essentially a matter for the Council and the Tribunal.

[29] This applies equally in the case of repeat applications. Planning

decisions in earlier applications affecting the subject or surrounding land are

often relevant considerations in the assessment of a later application. They

will almost certainly be relevant when the same use and development of the

same land is sought in both the earlier and later applications. It is for the

later decision-maker to determine what weight should be given to the earlier

decision. Assessment of the significance of correcting features in the context

of a proposed use and development is pre-eminently a planning and not a

legal matter.

21. In determining the weight to be given to a previous decision, the decision of K & B

Reichart v Banyule CC and Ors (1996/38819) sets out the following considerations,

which have often been used for guidance in such decision making:

While the Tribunal is not bound by precedent, there need to be reasonable grounds

for a later appeal determination to depart from a Tribunal view on a very similar

proposal earlier. ... It seemed to me that the factors which might justify a departure

from an earlier determination could include:

Significant changes in the application itself;

Changes in the circumstances of the land and its surrounds;

Changes in planning policy; and/or

Changes in the interpretation of the facts or law relevant to the Tribunal’s

consideration.

22. In this proceeding, I find it appropriate to give significant weight to the findings

contained in the previous Tribunal decision. I make this finding as there have been no

material changes in the circumstances of the land and its surrounds. While Ms Rainer

submits that the subsequent approval of a childcare centre at 91 Overport Road and the

construction of another childcare centre at 105 Humphries Road are changes in the

surrounding context, I was not informed why those changes should encourage me to

depart from, or give less weight to, the previous decision of the Tribunal. In my view,

those changes do not make the review site any more or less suitable for a childcare

centre. Further, while a new planning policy framework has been implemented in the

[3]

Frankston Planning Scheme via Amendment C141 since the previous decision, the

Council submits that this was a policy neutral translation of the previous policy

framework. Insofar as it applies to the policies that are relevant to this dispute, I confirm

that I have not detected any significant shift in intent between the policies that were

described in the previous Tribunal decision, and those which are before me in this

proceeding. Finally, none of the parties submit that there should be any change in the

interpretation of the facts or law relevant to the Tribunal's consideration.

23. As such, I need to give the previous decision of the Tribunal significant weight. I am not

bound by it, and it is not my role to determine if the previous Tribunal Member would

have been satisfied in relation to these latest plans. Rather I need to make my own

decision, while being guided by what the Tribunal has previously found to be

appropriate about a proposal, and where its concerns properly lay.

24. In the context of the dispute that is before me, and the findings contained in the previous

Tribunal decision, this last point is important. That is because in the previous Tribunal

decision, there was a very confined set of reasons as to why a planning permit was not

granted, as set out below.

[10] In this case, there are many aspects of the proposal that result in it being

one worthy of approval. However, it is the response to the landscape

character of the surrounding area and the presentation of the built form to

Fontayne Court, taking into account the relevant planning controls and

policies, where the proposal fails. This includes the extent of area available

for landscaping and the siting of the proposed car park in proximity to

Fontayne Court.

[11] After careful consideration, including whether changes could be made

through conditions in order to achieve an acceptable outcome, I have decided

to refuse the application. However, this reasons for this decision could

potentially be addressed through an amended proposal. It is conceivable that

changes could be made to address my concerns. I have, however, decided

that such changes are too great to be made through conditions on a permit

and may have different impacts on adjoining properties. Any such changes

would need to be included on any future proposal.

25. At the same time, the previous Tribunal decision confirmed the broad suitability of the

review site for a childcare centre, as set out in the extract below.

[34] It is uncontroversial in this case that child care centres have been

previously described as being appropriate in residential areas in principle in

numerous previous Tribunal decisions dating back many years. Whilst the

purpose of the GRZ referred to above also qualifies that such uses are to serve

‘local needs’, there is nothing about this proposed use that would indicate it

will not serve local needs, at least to some extent.

[35] I find the absence of a demonstrated need is not fatal to this application,

particularly given there is a lack of policy guidance seeking that need ought

be established.

[36] I also find that the proposed use is acceptable in this location in

principle.

[37] Although I am not persuaded that the subject site is located so close to

the primary school to form a cluster as clause 22.04 seeks, it is proximate to

it such that there are some synergies between the two. It is conceivable that

parents could have children at both the primary school and child care centre

simultaneously to provide benefit in a locational sense such that drop off and

pick to both could occur consecutively and without the need for multiple

trips. However, the subject site is not abutting the school or any other non-

residential use or activity centre that might be considered clustering.

[38] Although clause 22.04 does not expressly state so, it appears to me that

this policy seeks to encourage non-residential uses located close together in

residential areas in order to limit their impacts on residential areas by

concentrating their impacts in limited areas, rather than have them dispersed

more randomly through residential areas.

[39] In my view, I find the fact that the subject site would not form part of a

cluster is not necessarily fatal to the application. This is because the policy

seeking clustering of non-residential uses is not prescriptive or mandatory

but is one of a number of relevant factors to take into account.

[40] The fact that the subject site is in a residential area, located on a

relatively major road, sited on a corner and relatively proximate to the school

are positive factors that all weigh in favour of the site being an acceptable

location for a child care centre.

26. As I have already outlined above, I need to give the previous Tribunal decision

significant weight. In attributing such weight, it is important that I do not allow a

proposal to be permitted, which does not adequately respond to the previous Tribunal

decision. That would be unfair to the parties that oppose the grant of a permit. At the

same time, I should tread carefully into reconsidering matters that were previously

found to be acceptable. The reasons for this also have their basis in the principle of

fairness. All parties have a right to rely upon the findings and reasons contained in a

previous decision of the Tribunal, when a subsequent amended proposal is put forward.

As I have set out above, those that oppose a development have a reasonable expectation

that subsequent versions of a proposal will have to address the inadequacies previously

identified. That is, it would be unfair if a different Tribunal Member allowed elements of

a proposal that were previously found to be unacceptable, where the planning and

physical context is relatively unchanged. Likewise, a proponent of a proposal can

reasonably expect that matters which were previously found by a Tribunal decision to be

acceptable, will likely remain that way.

27. It is for these reasons that parties should tread wearily into agitating arguments that

were addressed and found to be acceptable in a previous Tribunal decision.

Unfortunately, the Respondents that appeared before me in this proceeding have done

that in relation to multiple aspects of the proposal. Where the relevant guidelines for

conducting an acoustic assessment for a child care centre have been updated in the

intervening period since the previous Tribunal decision, it is quite reasonable for the

parties to revisit the implication of these changes. However. where parties choose to run

arguments, such an the impact on traffic movements, that were effectively dismissed in

the previous Tribunal decision, and there have been no intervening changes of

consequence, that is contrary to the preferred approach in repeat appeals.

28. It is with this approach and understanding that I conduct the following assessment.

IS THE PROPOSED LAND USE APPROPRIATE?

29. As I have already set out in the introduction to these reasons, residentially zoned

neighbourhoods are often the most suitable zone for the establishment of new childcare

centres. The Frankston Planning Scheme at Clause 13.07-1L provides the following

policies for Non-residential uses in residential zones.

Locate non residential uses so that they front a primary or secondary arterial road

on at least one side if the non residential use is likely to cause traffic and noise

impacts to residential neighbours or if the use is proposed to provide services

outside standard business hours.

Discourage illuminated signs and outdoor security lights for non residential uses.

Providing adequate on-site parking and drop off points to ensure that residential

streets do not become congested by associated car parking.

Support non residential use and development that:

• Provides a focal point (including by adjoining an existing or planned activity centre or by

clustering similar uses).

• Is readily accessible by road and non-vehicular routes.

Ensure development associated with a non residential use reflects the domestic

architectural character and scale of nearby housing.

30. In part, these policies seek to guide the selection of sites for non-residential uses,

including childcare centres. Part of that guidance seeks to locate such uses so that they

front a primary or secondary arterial road. The review site satisfies this criteria by

fronting Overport Road, which is contained within the Transport Zone 3, and is regarded

by Council as a secondary arterial road. The Respondents say that this frontage is

irrelevant as the proposed childcare centre does not gain access off Overport Road, with

the car park accessed off Fontayne Court. Despite this fact, I find that there is a number

of locational advantages brought about by the siting of the proposed land use with a

frontage to a secondary arterial road. These include the following:

a. While the proposal will generate traffic movements in Fontayne Court, this will be

for a small stretch of that street before traffic movements can join the arterial road

network at an existing road intersection. This is a preferred scenario, as compared

to a site well removed from the arterial road network, that would be adding

additional traffic to a number of residential streets. It is also a preferred scenario to

an alternative whereby direct access is provided from Overport Road to a car park

on the review site, as this alternative scenario would create a new intersection

along a stretch of Overport Road that is busy at school drop off and pick up times,

and effectively create another intersection in close proximity with that at Fontayne

Court.

b. The site’s frontage to Overport Road means that this is a part of the residential

neighbourhood that already is somewhat affected by road noise from the arterial

road network, and therefore the traffic noise associated with the proposed

childcare centre will have a reduced impact on the surrounding neighbourhood.

c. The site’s abuttal to the arterial road network means that it is more easily accessed

by a range of people.

d. The proposed use of the site will become one of a collection of non-residential uses

along this stretch of Overport Road, including the Derinya Primary School,

Piccolos Early Learning Centre, and the childcare centre recently approved at 91

Overport Road.

31. Further, while the Tribunal in the previous decision for the review site found that the

proposed childcare centre would not achieve a cluster of similar uses, it is located close

enough to both the Derinya Primary School and the Piccolos Early Learning Centre, that

parents and carers could easily combine the one trip to drop off or pick up children from

multiple venues. Indeed, the fact that people currently park in front of the review site to

pick up their children from Derinya Primary School, is a clear indication of the close

proximity of that school to the review site, and the suitability of the review site to

provide a childcare centre that will enable single trips to both venues.

32. In the decision of Hope Early Learning Centre Pty Ltd v Frankston CC [2021] VCAT

1393 concerning a site nearby at 91 Overport Road, the Tribunal set out the following

assessment.

[23] In relation to these decision guidelines, there is a long line of Tribunal

decisions that establish the principle that childcare centres are appropriate

uses in residential areas. I have not been presented with submissions or

evidence in this case that persuade me to depart from that principle.

[24] I observe in this respect that this principle as a general concept was not

strongly opposed by the parties during the hearing. The issues in dispute

focus primarily on the acceptability of this proposal in this locality.

[25] My assessment of the proposal therefore proceeds on the basis that the

proposed childcare centre is compatible with residential use. There are many

very good reasons which underpin the long established principle that

childcare centres are appropriately located in residential areas, not the least

of which is that, notwithstanding the commercial basis of their operation,

they provide a community service and it can be expected that the need for

them is generated by at least some of the residents of the locality within

which the centre is located.

33. I agree with the analysis set out in the decision of Hope Early Learning Centre Pty Ltd v

Frankston CC [2021] VCAT 1393 that childcare centres are appropriate uses in

residential areas. Further, the policy at Clause 13.07-1L supports the use of the land for a

non-residential land use, and the site is sited close to a primary school, allowing for

multi-purpose trips. Further, for the reasons that follow later in this decision, the

dimensions and topography of the review site allow for a childcare centre to be

established. For these reasons, I find that the review site is a suitable one for the

proposed land use.

IS THE PROPOSAL AN APPROPRIATE BUILT FORM RESPONSE TO THE

SURROUNDING NEIGHBOURHOOD AND LANDSCAPE CHARACTER?

34. In addition to undertaking a wholistic assessment of the response of this proposal to the

surrounding neighbourhood and landscape character, this part of my reasons also

addresses the key matters that lead to the decision previously by the Tribunal to refuse

to grant a permit. Those key matters relate to the balance of built form and landscaping

along the frontage to Fontayne Court, and the extent of landscaping opportunities

provided throughout the site. These key matters are explained in the following extracts

from the previous Tribunal decision of ASL Alliance No. 2 Pty Ltd v Frankston CC

[2020] VCAT 1276.

[47] I agree with Mr Milner that the proposed building takes on a generally

conventional residential appearance, with a largely single storey building

(except for the clerestory element), a generous front setback to the Overport

Road frontage and constructed of weatherboards and with a tiled hip and

feature gable roof form. Window proportions and style are also residential in

appearance. These elements of the building are positive in the residential

context of the site.

[48] However, I am not persuaded that the setback to Fontayne Court as well

as the presence of the access ramp within this setback present as acceptable

features.

[49] Whilst the DDO1 seeks a 7.5 metre setback and the council said this

should apply to both street frontages, I am not persuaded that this is

necessarily required. However, the proposed setback of 3 metres to Fontayne

Court brings a large expanse of the building close to the side boundary, which

is not a characteristic feature of built form siting found in the surrounding

area. Whilst it might be expected that a secondary frontage of a corner site

might exhibit more visible built form elements, I find that this proposal

presents too much built form close to this frontage where that is not

something that is either found in the surrounding area nor is it what the

relevant provision and policy call for.

[50] In addition, the presence of the access ramp within this setback brings

about a more institutional appearance to this frontage which is again foreign

to the area.

[51] Further, the location, setback from Fontayne Court and the expanse of

the proposed car park adds to this non-residential appearance the proposal.

[52] The setback to Fontayne Court, the location of the access ramp and the

siting of the car park all combine to create a development which does not, in

my view, meet the DDO1 objectives and the preferred character and is not

respectful of the existing character. Policy seeks a more open, landscaped

outcome and one where built form is more subservient than what is proposed

here, both through specific guidance but also given policy seeks non-

residential development be responsive to the existing residential character.

[53] I am not concerned with the proposed high fence to the Overport Road

frontage or to the front section of the Fontayne Court frontage, given the

character of the area displays varied front fence heights and the subject site

currently has a high fence to the full extent of both road frontages.

...

[62] I find that the proposal has not struck an appropriate balance between

providing space for the intended use (play space for children and car park)

and an appropriate landscape outcome. In my view, the landscape response

has focussed on meeting the requirements for minimum play space and car

parking at the expense of providing an acceptable outcome with respect to

the bush character setting. Whilst there are some parts of the site that

provide the spaciousness policy seeks, these spaces are not responsive to the

landscape character, as they are largely devoid of planting. This includes the

various play spaces and the extensive car park.

[63] The landscaping response largely provides planting around the

perimeter of the site, where the character of the area is one where vegetation

is spread throughout sites, owing to the large lot sizes and dwelling sizes

being relatively modest in comparison to respective lots.

[64] The side setback of the proposed building, including the access ramp

was also criticised as being foreign to the area and not allowing for the

proposed building to integrate with the character of existing buildings, both

through its setback and landscaping.

[65] The setback of the building at 3 metres from the Fontayne Court

frontage serves both an access purpose from playrooms 6 and 8 as well as

landscaping, with the landscaping strip being approximately one third of this

setback.

[66] I find that this space is inadequate within which to serve both purposes,

as well as adequately respond to the landscape character of the area.

Although the subject site is on a corner and there may be an expectation of

greater visibility of built form on a secondary street frontage of a corner lot,

the setback does not provide space for landscaping that would provide an

acceptable response to the landscape character of the area.

[67] I am also not persuaded that the large setback to Overport Road should

in some way be used as ‘credit’ for the smaller setbacks to Fontayne Court as

suggested by Mr Milner. I find the proposal should be responsive to both

frontages.

[68] I also find the setback of the car park to be problematic in terms of a

landscaping response.

[69] The width of the car park occupies a significant proportion of the

Fontayne Court frontage, including two separate crossovers to provide one-

way access with a 1.87 metre setback from the frontage. This extent of hard

paved area is not characteristic of the area.

[70] It was submitted that the proposal provides a better, more open and

landscaped outcome than the existing conditions, particularly given the high

paling fence along the Fontayne Court frontage.

[71] Although the subject site currently contains a high paling fence along

this frontage, I do not find that this provides a reason that such a large extent

of hard paved area should be allowed, even when taken in combination with

the setback of the car park to Fontayne Court. The planning scheme is

seeking a different outcome.

35. While it is appropriate to have regard to the key reasons for refusal of the previous

proposal, I need to have regard to the entirety of the proposal, and whether it achieves

the outcomes sought by the Frankston Planning Scheme in terms of neighbourhood and

landscape character. A good starting point in this analysis therefore is to understand the

guidance provided by the Frankston Planning Scheme.

36. The review site is subject to the following guidance from the Planning Policy Framework.

Clause 02-03-2 Environmental and landscape contains the following single Strategic

direction:

Manage competing demands between environmental protection, landscape

amenity and facilitating development.

37. This policy really encapsulates what the remainder of the policy framework seeks to

achieve. On the one hand, it seeks to facilitate development, not stymie it or try to find

obscure reasons why it should be opposed, but facilitate development as an economic

enabler that is to be seen as a positive element of the future of this municipality.

However, the balance to be achieved, is to ensure the protection of the environment and

landscape amenity while facilitating development. The following policies provide some

guidance as to how this balance is to be achieved.

a. Policy at Clause 02.03-3 provides the following guidance regarding protecting the

amenity of residential neighbourhoods.

Care is required in siting and designing non-residential uses in residential zones to

avoid loss of privacy and amenity, while still providing convenience to residents

living nearby.

Non-residential uses within and adjacent to residential areas may sometimes

impact residential amenity due to the poor design of buildings or the spaces

around them. There is a need to locate non-residential uses appropriately and

ensure existing buildings (when used) are retrofitted to address amenity issues and

new buildings are specific purpose designed and built to be responsive to their

setting and respond to reasonable residential amenity expectations.

Strategic directions:

• Ensure non-residential uses are responsive to their residential setting and maintain

existing standards of residential amenity.

• Minimise conflicts between industrial, commercial and residential uses, by supporting

design and built form that address noise, air quality, traffic and visual intrusion.

b. Clause 02.03-5 provides the following guidance in relation to Neighbourhood character.

There are a wide variety of environments within the City ranging from the coastal

foreshore to the rural residential areas. Many elements contribute to the individual

character of different parts of the municipality. These elements include

topography, vegetation density, building form, scale, siting, materials and front

fencing.

Development needs to respond to the particular elements of the built form and

natural environment that make up the character of Frankston.

Strategic directions:

• Ensure that the landscape character is respected within residential areas.

• Ensure new development responds to its context and the preferred future character of

the area.

c. Clause 02.03-7 contains policies relating to Economic development, that encourages the

creation of employment opportunities within the municipality.

d. Clause 12.05-2L Frankston landscapes contains the following policy:

Support proposals that retain and enhance vegetation and contribute to the visual

quality of significant landscapes.

e. Clause 13.07-1L has already been quoted earlier in these reasons, and seeks to guide

proposals for non-residential land uses in residential zones.

f. Clause 15.01-5L Frankston preferred neighbourhood character seeks to:

Ensure that development is responsive to the preferred future character of the

area.

The site is within Precinct 8 of Frankston South. Unfortunately to find the preferred future

character of this Precinct, one needs to head outside the Frankston Planning Scheme to a

background document, the Frankston City Neighbourhood Character Study (Planisphere and

John Curtis Pty Ltd, 2002), where the following preferred neighbourhood character statement

is found:

The remnant bush landscape is to be maintained, spaciousness of the area and its

relationship to the Sweetwater Creek environs are to be strengthened by:

• Protecting remnant indigenous vegetation

• Encouraging planting of indigenous vegetation in private gardens in areas visible from

the public domain

• Limiting the proportion of site coverage by buildings and hard surfaces

• Encouraging low scale dwellings that sit within the landscape

• Ensuring buildings are sited within grounds with substantial setbacks from all

boundaries

• Encouraging open or farm fence style front boundary treatments

• Strengthening informal planting of indigenous vegetation on roadside reserve.

g. Clause 19.02-2S of the Frankston Planning Scheme provides the State level policies for

Education centres, which partly provides guidance for the future establishment of

childcare centres.

Objective

To assist the integration of education and early childhood facilities with local and

regional communities.

Strategies

Consider demographic trends, existing and future demand requirements and the

integration of facilities into communities in planning for the location of education

and early childhood facilities.

Locate childcare, kindergarten and primary school facilities to maximise access by

public transport and safe walking and cycling routes.

Ensure childcare, kindergarten and primary school and secondary school facilities

provide safe vehicular drop-off zones.

Facilitate the establishment and expansion of primary and secondary education

facilities to meet the existing and future education needs of communities.

Recognise that primary and secondary education facilities are different to

dwellings in their purpose and function and can have different built form

(including height, scale and mass).

Locate secondary school and tertiary education facilities in designated education

precincts and areas that are highly accessible to public transport.

Locate tertiary education facilities within or adjacent to activity centres.

Ensure streets and accessways adjoining education and early childhood facilities

are designed to encourage safe bicycle and pedestrian access.

Consider the existing and future transport network and transport connectivity.

Develop libraries as community based learning centres.

38. Aside from the planning policy framework, the other key guidance from the Frankston

Planning Scheme is found in the General Residential Zone, and the two overlays that

apply to the review site. Clause 32.08-13 of the Frankston Planning Scheme contains the

following Decision guidelines for Non-residential use and development.

◦ Whether the use or development is compatible with residential use.

◦ Whether the use generally serves local community needs.

◦ The scale and intensity of the use and development.

◦ The design, height, setback and appearance of the proposed buildings and works.

◦ The proposed landscaping.

◦ The provision of car and bicycle parking and associated accessways.

◦ Any proposed loading and refuse collection facilities.

◦ The safety, efficiency and amenity effects of traffic to be generated by the proposal.

39. The site is included in Schedule 1 to the Design and Development Overlay (DDO1).

DDO1 contains the following Design objectives.

To maintain and enhance the low density treed character of Frankston South in

recognition of its contribution to the housing diversity and its landscape quality.

To ensure that development densities are consistent with the landscape character

of the Frankston South area.

To ensure that development responds to the physical characteristics and landscape

qualities of the Sweetwater Creek and its environs.

To ensure that new development responds to established and preferred streetscape

and neighbourhood character and built form in terms of building height, scale,

siting and landscape setting.

40. While DDO1 contains a number of Decision guidelines, only the following two are

relevant to this proposal:

◦ The appropriateness of any subdivision, building or works having regard to land

capability, including land form, slope, drainage, stormwater flows and the presence

of vegetation.

◦ The extent to which the proposed development meets the objectives and design

responses contained in the relevant Neighbourhood Character Study Character

Statement.

41. The site is also included in Schedule 3 to the Significant Landscape Overlay (SLO3). This

Schedule contains the following single Landscape character objective:

To maintain the well vegetated landscape character of Frankston South.

42. The Council submits that the proposal has not adequately responded to the reasons in

the previous Tribunal decision to refuse to grant a permit, having regard to the following

design elements:

a. The changes in setbacks to Fontayne Court have not resulted in any substantial

improvement in the ability to plant canopy trees, instead, it has resulted in a more

dominant combined presence of retaining walls and fencing;

b. The car park will remain a prominent and visually dominant element, with the

width of the car park as it presents to Fontayne Court not reduced from the

previous proposal; and,

c. The overall landscaping response does not increase the number of trees proposed

across the review site, and does not improve the response to the landscape

character of this neighbourhood.

43. Having regard to the guidance from the Frankston Planning Scheme, the Council

submits the following at page 52 of its written submission.

Council submits that the building scale, the extent of play area and the limited

planting space:

• Fail to maintain the spaciousness of the area or strengthen the valued bushy garden

character, as sought by Clause 15.01-5L.

• Fail to enhance the landscape quality of the area, as sought by DDO1.

• Fail to provide an acceptable design response to the established and preferred

streetscape and neighbourhood character, as sought by SLO3.

44. The Respondents make similar submissions to those of the Council. Mr Ribbands

supports and adopts the Council’s submissions, while calling expert planning evidence

from Ms Morland, which I address below. Ms Borrie emphasises the building setbacks to

Fontayne Court and the highly exposed car park, which she says will not provide for tree

growth. Ms Rainer submits that the proposal is not consistent with the designation of

the area as a Minimal Change Area under the Frankston Housing Strategy (Frankston

City Council, 2018), and that the proposed concrete car park is foreign for this area.

45. In this proceeding I have been presented with planning evidence from Ms Morland that

opposes the grant of a permit, and planning evidence from Mr Crowder that supports the

proposed use and development. I have chosen to prefer the evidence of Mr Crowder, and

give Ms Morland’s evidence little weight, for the following reasons:

a. Ms Morland has attributed an unusual extent of weight on the number of

objections received to the planning permit application, as an indicator that the

proposal is not consistent with the surrounding landscape character, or as she put

it, the sense of place. While in response to my questions Ms Morland said she

placed minimal weight on the number of objections, her written evidence does not

support this response. I make this finding having regard to her six references to the

number of objections in her written evidence, and also having regard to the

following extracts from the written evidence.

The number of objectors to the planning permit application (i.e., 278) indicates

that the Frankston South community is extremely concerned that the proposal will

have a detrimental impact on the amenity of the area in terms of landscape

character. This is a valid concern and must be given the appropriate weight in

[4]

determining the application.

A total of 278 objections were received to the planning permit application prior to

the application being refused at a Council meeting. The number of objections, and

the refusal of the application by the Council, demonstrates that the proposed

development is not perceived by the residents or the Council, to respect the

[5]

neighbourhood character values and built form the reflect community identity.

b. Ms Morland has also attributed an inappropriate amount of weight to the designation of

this area as a Minimal Change Area under the Frankston Housing Strategy (Frankston

City Council, 2018). Again while Ms Morland, after being questioned about this

approach, stated she had placed minimal weight on this designation, her written

evidence does not support this position. I make this finding having regard to her

identification and reliance of the minimal change area designation as a starting point for

her analysis of the strategic guidance for this location. Ms Morland’s decision to place

any weight of consequence on the Frankston Housing Strategy (Frankston City Council,

2018) would be erroneous and misleading, for two reasons. Firstly, as set out in the

[6]

previous Tribunal decision, the planning scheme amendment intended to implement

its recommendations into the Frankston Planning Scheme has been denied

authorisation. As Ms Morland would have read the previous Tribunal decision in her

preparation for this proceeding, this should have been known and understood. Secondly,

an enquiry with the Council, as I undertook during the course of the hearing, reveals that

the Council now intends to set aside the Frankston Housing Strategy (Frankston City

Council, 2018), and embark on producing a new housing strategy and neighbourhood

character study.

c. Ms Morland has also placed weight in her written evidence on the Frankston City

Council Open Space Strategy 2016-2036, without understanding how, or indeed

whether, it was referenced in the Frankston Planning Scheme. As is the case with the

Frankston Housing Strategy (Frankston City Council, 2018), Ms Morland has

referenced and relied upon the Frankston City Council Open Space Strategy 2016-2036

as a starting point for her assessment of the strategic guidance that applies to the review

site. As it turns out, it is not referenced in the Frankston Planning Scheme, nor is it a

background document to the Scheme.

d. The written evidence of Ms Morland fails to identify or refer to the specific policies for

early childhood facilities at Clause 19.02-2S of the Frankston Planning Scheme.

e. In her written evidence, Ms Morland had failed to appreciate the extent of additional

trees that would be planted on the review site, and the contribution this would make to

an enhanced landscape. These are matters that were conceded by Ms Morland while

under cross examination by Mr Peake.

f. Ms Morland in her written evidence incorrectly identifies the proposed childcare centre

as an out of centre commercial development that would be subject to the policies at

Clause 17.02-2S of the Frankston Planning Scheme.

g. Ms Morland has formed the opinion, which was confirmed in oral responses to cross

examination, that the site does not have a frontage to Overport Road, on the basis that

all access is to be gained via Fontayne Court. She opines therefore that the proposal does

not benefit from the policy support at Clause 13.07-1L of the Frankston Planning Scheme

for the location of a non-residential use on the review site.

h. Ms Morland has approached her task of assessing the impact of the proposed

development on the surrounding neighbourhood and landscape character, by comparing

the presentation of the side boundary of the review site to Fontayne Court, with the

character of lots that front Fontayne Court to the east of the review site. In undertaking

her task in this manner, Ms Morland has failed to appreciate the extent to which corner

allotments in this neighbourhood present in a different form and character to streets

that form the side boundary of these corner allotments.

46. In my view, this last issue in the list above is one of the key matters that assists a

decision maker like myself to determine whether the proposed development is an

appropriate response to the surrounding neighbourhood and landscape character of this

context. At present, the review site presents differently to Fontayne Court, as compared

to the lots that have a frontage to the street. The same can also be said for the property

on the opposite (northern) side of Fontayne Court at 135 Overport Road. Both lots

present with a high fence or hedge to the respective property boundaries, with smaller

setbacks to built form, and an absence of the open front yard character that is so strong

and consistent across the lots that have a frontage to Fontayne Court. The presentation

of these two corner allotments to Fontayne Court is depicted in the photograph below.

2022_75200.png

47. This contrast in the way that corner lots present to the side street, as compared to other

lots within the same street, is to be expected. Indeed it can be observed on most of the

streets in this neighbourhood, and across metropolitan Melbourne. By their very nature,

corner lots cannot replicate to their side boundaries, the type of setbacks and generous

open garden settings, that are found on the remaining lots that have a frontage to

Fontayne Court. Indeed, it would be counterintuitive to expect the review site, and the

other corner lot at the intersection of Overport Road and Fontayne Court, to be able to

repeat the valued character elements that so clearly define the remainder of Fontayne

Court.

48. As such, when assessing the proposal that is before me, I should not be seeking an

outcome that reflects the spacious front garden settings that are found elsewhere in

Fontayne Court. Instead, I should be seeking an outcome that achieves the preferred

future neighbourhood character for this area, in a manner that reflects the different way

that corner allotments present to the respective side streets in this neighbourhood.

49. In response to the concerns identified in the previous Tribunal decision, the proposed

development comprises the following changes, as summarised in the Council’s written

submissions in this proceeding.

◦ An increase in the minimum setback of the building from Fontayne Court, from 3

metres to 7.495 metres.

◦ Removal of the accessible ramp, which was previously located within the Fontayne

Court front setback.

◦ A reduction in the number of car spaces, from 25 to 21, which results in an

associated decrease in the number of children (from 116 to 95).

◦ An increase in the setback of the car park from Fontayne Court, from 1.87 to 3

metres.

◦ A reduction in building site coverage, from 693m2 (as shown on previous plans) to

597.4m2 (as shown on the current amended plans, noting that this figure seems to

[7]

exclude the 17m2 porch and 33.6m2 covered play area).

50. While this list of changes is correct, I would note that the setback of the building from

Fontayne Court is increased from 3.0 metres, to a setback that now ranges between

7.495 metres and 8.495 metres.

51. I find that the extent of changes that have occurred to the proposed development have

appropriately responded to the concerns identified in the previous Tribunal decision.

Where previously the Tribunal was concerned in relation to the balance between built

form and landscaping that presents to Fontayne Court, I consider that the proposal that

is now before me has achieved an appropriate balance. This does not mean that the built

form elements, comprising fencing, retaining walls, the car park and the building itself

will be invisible or not have an identified presence in the streetscape. Rather, it means

that I am satisfied that these built form elements will be less dominant in the streetscape

than was previously the case, and will be appropriately balanced with a generous

landscaping response for a side boundary to corner allotment.

52. The difference in the balance that has been achieved between built form and

landscaping, from the previous proposal to that which is now before me, can be observed

in the comparative landscape plans that are set out below.

53. The layout of the various built form elements that was previously before the Tribunal (in

the top image above) only permitted a landscaping response that comprised a

regimented formal row of planted trees that would grow up to 10 metres in height at

maturity. Further, previously that formal row of trees was broken considerably by the

positioning of the access ramp to the front boundary at a position where the built form

reached its highest point above natural ground level. In comparison, the layout of the

various built form elements that are now before me (in the bottom image above) permits

a more generous and varied landscaping response, that comprises a variety of

indigenous trees and includes species that will grow up to 30 metres in height at

maturity. Further, the extent of landscaping proposed along the side boundary to

Fontayne Court is in a more continuous form, as it is no longer broken by a broad access

ramp. The outcome is one that exemplifies a high quality landscaping outcome for a side

street presentation on a corner allotment.

54. This increase in landscaping is combined with a substantial increase in the setback to the

proposed childcare centre building on the review site, as well as a more articulated built

form with a varied setback from Fontayne Court. In addition, the removal of the access

ramp significantly reduces the extent of infrastructure within the front setback, which

also assists to achieve a better balance between built form and landscaping. The parties

that oppose the grant of a permit raise a concern with the extent of retaining walls and

fencing now proposed in the front setback. However, I find that the extent of retaining

walls are minimal, and they will be well hidden by and integrated into the overall

landscaping response. Further, the proposed fencing is all permeable, as opposed to the

existing solid fencing on the review site, and has a varied alignment with one component

on boundary and another offset by 3.0 metres, which adds to the varied presentation to

the street.

55. A number of the parties that oppose the grant of a permit are still critical of the

positioning and size of the proposed car park, and submit that its setback to Fontayne

Court, and width of presentation to Fontayne Court, is not significantly altered. I am not

persuaded by these submissions, for the following reasons. Firstly, I consider that the

increase in setback from 1.8 to 3.0 metres is a substantial change that allows a more

generous landscaping response, that is evident on the landscape plans that are now

before me. Secondly, the overall size of the car park has been reduced by approximately

[8]

100 square metres, and I do not consider that this reduction in size as insubstantial.

Thirdly, an integrated decision-making approach requires me to consider the sum of the

entire presentation to Fontayne Court. For the reasons set out above I consider that the

proposed development now achieves an appropriate balancing of landscaping and built

form outcomes, that successfully reduces the visual presence of the built form elements

in the streetscape, and comprises a generous landscaping response for a corner

allotment to a side street.

56. The parties that oppose the grant of a permit are also critical of the proposed car park,

arguing that is an element that is foreign to this neighbourhood. While I appreciate that

there are currently no car parks associated with community uses in Fontayne Court, the

relevant neighbourhood is broader than that, and currently comprises sealed car parks

at both Derinya Primary School, and Piccolos Early Learning Centre. Both of these

sealed car parks are sited close to the road reserve in Overport Road, and are screened

by landscaping responses that are similar, or less extensive, than that now proposed to

the review site. For these reasons I regard the proposed car park as being consistent with

this existing character of car parks associated with community uses, that contributes to

the existing neighbourhood and landscape character of this area.

57. The proposal that is before me is also an appropriate response to the criticism contained

in the previous Tribunal decision, that the proposal before it at that time comprised

mostly landscaping to the perimeter of the review site, which contrasted with the

character of the area where landscaping is spread throughout sites. As I have already

noted above, this revised proposed development that is now before me achieves a very

different and vastly improved landscape presentation to Fontayne Court, that no longer

presents as a regimented row of landscaping along the frontage to Fontayne Court, but

rather presents as a landscaping area with some depth and variety. In addition, I note

that the proposal that is before me intends to retain trees 27 and 28, that were previously

proposed to be removed. Further, Mr Wallbrink’s landscape plan now proposes the

planting of a Japanese Elm and a Waterhousia within the generous setback to Overport

Road, where no tree planting was previously proposed. These two trees can fairly be

described as not being sited around the perimeter of the review site. These changes,

combined with the trees proposed to the south of the car park, will ensure that a more

generous landscaping outcome is achieved across the site, rather than simply being

constrained to the perimeter as was previously the case.

58. On a broader assessment, the proposal now achieves an appropriate outcome with

respect to the surrounding and preferred neighbourhood character, and the landscape

character. Having regard to this revised landscaping response, and for the reasons set

out above, I find that the proposal now achieves the Landscape character objective, and

is consistent with the Decision guidelines, contained in SLO3. In particular I find, for the

reasons set out above, that the proposal will appropriately contribute to the well

vegetated landscape character of Frankston South, and will have a positive impact on the

visual landscape of the area, when compared to the existing high fence on the review site

that presents to the surrounding public realm at present. The proposal also successfully

seeks to avoid tree removal, minimise the impact on existing trees, and mitigate the tree

removal that does occur with a generous palette of new planting.

59. Turning to the Preferred Neighbourhood Character Statement that is contained in the

relevant precinct brochure, I find that the proposed development is consistent with this

statement for the following reasons:

a. As there is no remnant indigenous vegetation on the review site, none can be

protected;

b. The entire landscaping scheme that has been implemented on the review site by

Mr Wallbrink is centred on the planting of indigenous vegetation that will be

visible from the public domain, particularly from Fontayne Court;

c. In response to the previous criticisms of the Tribunal, the amended plans have

successfully limited the proportion of site coverage by buildings (24.3%) and hard

surfaces (45.6%), in order to achieve a landscaping outcome that is responsive to

the surrounding neighbourhood;

d. The proposed childcare centre, at single storey in height and cut partly into the

slope of the land, can certainly be described as a low scale built form;

e. The proposed development has generous setbacks from all boundaries for a corner

allotment, comprising setbacks of 17.8 to 20.0 metres from Overport Road, 7.495

to 8.495 metres to Fontayne Court, 4.0 metres to the southern boundary, and 33.5

metres to the eastern boundary.

f. The presentation of the review site to Fontayne Court, which is the important

presentation from a character perspective, will comprise open fencing, part of

which will be setback from the road frontage so as to provide a partly open garden

setting to the review site; and,

g. The proposed development can provide for the retention of the existing indigenous

vegetation on the roadside, as well as the planting of new indigenous roadside

vegetation.

60. Returning to the content of the Frankston Planning Scheme, and in particular the

policies at Clause 15.015L, I find that the proposal is an appropriate response to the

preferred neighbourhood character for this area for the following reasons.

a. The proposed development will minimise site disturbance, through the selection of

the review site as one of the more gently sloping sites in this neighbourhood, and

will minimise the impact of the building on the landscape by integrating the

building with a new landscaping response, and by cutting part of the building into

the slope on land to reduce its scale.

b. The proposed development will strengthen the continuous flow of vegetation

across the landscape, by providing open fencing along the important frontage to

Fontayne Court, and an open garden setting to the western half of the frontage to

Fontayne Court.

c. While I am not persuaded that this neighbourhood comprises a rural bush setting,

in any case the proposal achieves the relevant guideline of incorporating space for

the planting of substantial vegetation.

d. The proposal provides setbacks on all boundaries, and thus preserves the rhythm

of dwelling spacing, to the extent that this is relevant and achievable on a corner

allotment.

e. Adequate spaces are provided both for the retention and planting of vegetation,

noting the retention of two large canopy trees on the review site, the setting back of

works to protect trees on neighbouring sites, and the planting of a substantial

amount of new vegetation, including canopy trees.

f. The site does not adjoin Sweetwater Creek.

g. The form and elevation of the proposed childcare centre is heavily articulated

through a variety of setbacks, wall planes and roof forms.

61. Finally, the parties that oppose the grant of a permit are also concerned regarding the

impact on existing trees on land that surrounds the review site. Having regard to the

evidence of Mr Ryder, who was called to give expert evidence by a group of respondents,

the proposed development of the land will only potentially impact tree 20 on the

adjoining site to the south. However, it is the evidence of Mr Ryder that the potential

impact on tree 20 can be mitigated by a permit condition that ensures that fill is not

placed within 4.0 metres of the centre of the trunk of this tree. As that permit condition

has been agreed to by the applicant during the course of the proceeding, this mitigates

the only identified potential impact on an existing tree.

62. In addition, I note that the Council is keen for a footpath to be constructed along part of

the Fontayne Court frontage, which could potentially impact trees within the road

reserve. Ultimately, the method of construction of this footpath, and whether it gets

constructed at all, is a matter for the Council. During the course of the hearing I

identified that the street trees that would be potentially impacted, are showing

significant signs of poor health and structure, which was agreed to by Mr Ryder. I am

satisfied that in the process that will follow the grant of permit, the Council will be able

to review the health and condition of these trees, and if they are intended to be retained,

will ensure that the footpath is constructed in an appropriate manner

63. For these reasons I find that the proposed development is an appropriate response to

both the neighbourhood and landscape character of this area, and the guidance provided

by the Frankston Planning Scheme.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

64. Off-site amenity impacts to abutting residential properties are generally measured in

terms of overlooking, overshadowing and visual bulk. The proposed development will

not create any overlooking, having regard to its relative low height, and therefore low

positioning of windows, relative to the height of the fence along the southern boundary

of the review site. Further, the proposed building is appropriately setback from other

surrounding residential properties to appropriately restrict any potential overlooking. In

relation to overshadowing, the proposed building will not create any additional shadows

to the adjoining properties between 9:00am and 3:00pm at the equinox, having regard

to the shadow diagrams that form part of the set of plans that was substituted at the

commencement of the hearing.

65. In relation to an assessment of visual bulk, the review site has two adjoining properties

to its east and south respectively. The proposed building on the review site has a setback

of approximately 33.5 metres from the eastern boundary. At this distance, a single storey

building could not possibly cause an unreasonable level of visual bulk. The proposed

building also has a setback of 4.0 metres from the southern boundary of the review site,

and will have a wall height above the natural ground level along the southern elevation

of between 1.56 and 2.92 metres. At this height, the proposed setback far exceeds that

required under the relevant ResCode standard in the event that this was a residential

development, and the proposed scale of the childcare centre building cannot possibly be

said to result in an unreasonable level of visual bulk to the adjoining property to the

south of the review site.

66. The respondents also argue that the proposed development will result in an

unreasonable amenity impact, by reason of the noise and activity associated with the

additional vehicle movements along Fontayne Court. I will address this issue separately

as part of my car parking and traffic analysis later in these reasons.

67. The final matter is the potential acoustic impact from the childcare centre on the

surrounding residential properties. This impact was assessed in the following manner in

the previous Tribunal decision of ASL Alliance No. 2 Pty Ltd v Frankston CC [2020]

VCAT 1276 for the review site.

[88] However, it appears to me that the assessment by Mr Tardio produces

results which would indicate that the increase in the level of noise associated

with the proposed use would not be unacceptable. The additional noise

would be up to 4dB(A) more than background which I find is not a significant

increase. I accept that at times, it could be louder and at other times it would

be quieter.

[89] Mr Tardio’s assessment is based on there being an acoustic fence of at

least 1.8 metres high along the southern boundary, which there is already a

similar type and height fence and of a mass of at least 10kg/m2. His

assessment is also based on there being a section of similar fence along part

of the eastern boundary which would be a change to existing conditions. Such

a fence would be approximately 11 metres in length and abut part of the front

yard of 16 Fontayne Court.

[90] I find that such a fence would provide adequate noise attenuation such

that there would be no unacceptable noise impact and that there would be

little or no change to the existing appearance of the fence along the southern

boundary compared with what currently exists.

[91] The change to the fencing along the eastern boundary would be for a

relatively small length of the adjoining property’s boundary and also the

extent of which would not reach the Fontayne Court frontage and be less

visible from the street. Whilst the proposed fence would be a change along

this eastern boundary, its limited extent compared with the overall length of

boundary of 16 Fontayne Court would be acceptable.

[92] Noise from vehicles accessing the site was likely to be lower than that of

children playing but Mr Tardio stated that waste collection and deliveries

should be limited in hours to minimise any unacceptable noise impacts. This

could have been conditioned in the event a permit was granted.

68. Acoustic evidence was again provided in this current proceeding by Mr Tardio. Since the

previous hearing, Mr Tardio has again undertaken measurements of the background

noise levels, and found these to be unchanged from his previous recordings. I give

weight to these background noise measurements, given that the recording equipment

was sited in the very south eastern corner of the review site, which would be the quietest

position on the review site, as it is separated from traffic noise along both Overport Road

and Fontayne Court. I also note that the background noise measurements have twice

been undertaken in accordance with the guidance provided in the Association of

Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic

[9]

Assessment, Version 3.0 (September 2020), which means that Mr Tardio now has

around 16 days of background noise recording to inform his evidence.

69. Mr Tardio has also again modelled the potential increase in noise that would be

experienced on surrounding properties, based on a scenario where all of the 95 children

that are proposed to represent the maximum capacity of the centre, are outside and

creating noise at the same time. Mr Tardio has based his analysis in this scenario, even

though it is highly unlikely to occur, given the preference of most childcare centre

operators to have different age groups of children outside at different times. Under this

scenario, the model presented by Mr Tardio demonstrates that at the nearest boundaries

of the surrounding properties the increase in noise will not exceed the target of

background noise plus 10dB. This continues to be the target for the noise emitted from a

childcare centre in this context, under the Association of Australasian Acoustical

Consultants Guideline for Child Care Centre Acoustic Assessment, Version 3.0

[10]

(September 2020).

I am persuaded by the evidence of Mr Tardio that this target is

appropriate, given that it relates to the emitted noise levels at the nearest boundaries of

surrounding properties, with some of those boundaries on the surrounding properties

being those that abut noisy road environments. In each of the surrounding properties

noise sensitive receptors such as habitable rooms are positioned further away from

boundaries, and in the model presented by Mr Tardio they will experience much lower

noise levels from the proposed use and development.

70. Some of the respondents raise concerns that the elevated habitable room windows in the

adjoining property to the south of the review site, may have a direct line of sight above

the proposed acoustic fence along the southern boundary, and thus receive an increased

level of acoustic impact. However, both the 3D model adopted by Mr Tardio, and a

cross-section that I put to Mr Tardio during questioning, demonstrate that the height of

the acoustic boundary fence is sufficient to intercept all direct noise paths from the play

area adjacent to the southern boundary of the review site.

71. For these reasons I find that the proposed use and development will not result in any

unreasonable noise levels experienced by surrounding residential properties.

72. At the conclusion of the hearing Mr Ribbands requested a permit condition that the play

area in the south-eastern corner of the review site be restricted to use by younger

children, in order to reduce the noise impacts on the adjoining property to the east.

There is no basis for such a request, for the following two reasons. Firstly, as this request

was not put to the expert acoustic witness, I am not persuaded that such a restriction

would achieve any material or consequential acoustic benefit for the adjoining property.

Secondly, it is the evidence of Mr Tardio that an appropriate acoustic environment will

be achieved by the proposed use and development of the land, absent of any such

conditions.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND

TRAFFIC MOVEMENTS?

73. In the previous Tribunal decision of ASL Alliance No. 2 Pty Ltd v Frankston CC [2020]

VCAT 1276 the Tribunal found that the proposal would appropriately provide for future

traffic volumes in the surrounding road network, as evidenced in the following extract.

[100] I have no doubt that there will be some impacts from increased traffic

volume but I find that these will not be unacceptable, based on the location of

the proposed car park and the fact that the car park has been designed to

have a separate entry and exit point and one-way traffic flow.

[101] I am also satisfied that the impact would be acceptable as the traffic

volume would be spread over a number of hours at each end of the day and

that this volume, although more significant than what is currently

experienced in this part of Fontayne Court, would have minimal impact on

the nearby properties given the corner location of the site. The prospect of

traffic travelling along Fontayne Court beyond the subject site is possible but

I would think unlikely and certainly unlikely in any significant volumes.

[102] In terms of accessibility to and from the subject site, I accept that

during the school drop-off, but perhaps more particularly during school pick-

up times associated with Derinya Primary School to the north, some cars

associated with the school pick-up currently park along the southern side of

Fontayne Court. At these times, there are parking restrictions along the north

side of Fontayne Court which prohibits parking. This allows parking along

the southern side and two clear lanes of traffic, one in each direction, which

will maintain traffic flow.

[103] Whilst there are peak times of traffic and parking in the surrounding

area associated with existing school pick-up and drop-off times, these are

confined times during school terms. I find that whilst it is possible that some

new traffic generated by the proposal will seek to access the proposed child

care centre during school hours, the amount of this traffic that is

disassociated with the school would be limited.

74. The current proposal that is now before me is for a childcare centre of a reduced size, as

compared to that which was previously before the Tribunal. Whereas previously a

childcare centre was intended to have a capacity of 116 children, that is now reduced in

the current proposal to 95 children. As a result, the revised proposal now comprises a

reduced demand for car parking, and a reduced amount of additional traffic movements

in the surrounding road network.

75. In this proceeding, traffic and car parking evidence was again provided by Mr Furness. It

is his evidence that the proposed childcare centre creates a car parking demand for 20

car parking spaces, applying the provisions that are found at Clause 52.06 of the

Frankston Planning Scheme. As the proposed development of the review site provides

for 21 car parking spaces on site, it is the evidence of Mr Furness that the demand for car

parking created by the planning scheme is met, and that all car parking associated with

the proposed use can be contained on site.

76. Ms Nugara made submissions that sought to demonstrate that most of the car parking

that is to be provided on site would be taken up by staff car parking demands. I am not

persuaded by this submission for the following reasons. Firstly, Ms Nugara had to

estimate the different age groups of children that would be cared for on site, which has a

significant impact on the number of staff that would be required on site. As such, any

variation in these estimations would vary the number of staff, and the number of car

parking spaces that staff could accommodate. Secondly, Ms Nugara made her

assessment on the assumption that all staff would be on-site at all times during the

operation of the childcare centre. Clearly, that is not how childcare centres operate, with

the number of staff slowly increasing and decreasing during the day as children are

dropped off and picked up, and with support staff such as the cook, only needing to be

on site during particular times. For these reasons I prefer the evidence of Mr Furness

over the submissions of Ms Nugara, despite her connection to the operation of Piccolos

Early Learning Centre.

77. It is the evidence of Mr Furness that the proposed development will result in an increase

of 420 vehicle trips per day, including 76 vehicle trips in the peak hours. While it is

evident that this will bring a noticeable increase in traffic to the very western end of

Fontayne Court, I am persuaded by the evidence of Mr Furness that the extent of traffic

that will prevail is well within the expected environmental and amenity capacity of such

a street. It is also important to note that the increase in traffic movements will be

contained to the frontage of the review site to Fontayne Court, as well as the frontage of

the property on the northern side of Fontayne Court that also has a side boundary to this

street. The property on the opposite side of Fontayne Court presents with a high hedge

to the street, and therefore will be only marginally impacted by the increase in traffic

movements. Increased traffic movements will not continue down the remainder of

Fontayne Court, and therefore will not impact the other properties that front this street.

While the properties that are sited to the immediate east of the review site on both sides

of Fontayne Court will notice the noise and activity associated with this additional

traffic, these properties will already experience amenity impacts associated with the

noise of traffic along Overport Road, and the traffic that currently uses Fontayne Court

as a pickup point for school children from the nearby Derinya Primary School. Having

regard to all of these matters, I consider that the extent of increased traffic that is

proposed to Fontayne Court will not result in an unreasonable amenity impact to the

existing dwellings in this location.

78. I am also persuaded by the evidence of Mr Furness that the additional traffic movements

that will occur to the intersection of Overport Road and Fontayne Court, can occur in a

safe and appropriate manner. Mr Furness has conducted an analysis of the future

operation of this intersection, and found that unreasonable delays in queueing will not

occur along any approach to the intersection. This includes those vehicles trying to exit

Fontayne Court into Overport Road, during both the AM and PM peak hours, and the

PM school drop-off period. Again, Ms Nugara submits that the manner in which traffic

operates in this part of Overport Road as a result of the location of the Derinya Primary

School and Piccolos Early Learning Centre, will mean that traffic associated with the

proposed childcare centre on the review site will unreasonably add to the existing

congestion. I am persuaded by the evidence of Mr Furness that his model and analysis of

the future operation of Overport Road and Fontayne Court has taken into account the

existing traffic levels experienced from the surrounding land uses, including the Derinya

Primary School and Piccolos Early Learning Centre. While I have no doubt that the

surrounding road network is busy during school drop-off and pick-up times, this is not

unusual for roads that provide access to schools throughout metropolitan Melbourne. I

am persuaded by the traffic evidence that the additional traffic levels that will be

generated by the proposed childcare centre can be safely and conveniently

accommodated in the surrounding road network, with minimal additional delays.

79. For these reasons I find that the proposed development of the land will appropriately

provide for car parking and traffic movements.

ARE THERE ANY OTHER ISSUES?

80. The review site is located within a designated bushfire prone area. The previous Tribunal

decision made the following remarks in relation to this designation.

[104] The subject site is not affected by the Bushfire Management Overlay

but is in a designated Bushfire Prone Area under the Building Act 1993.

Therefore, clause 13.02-1S applies and requires decision makers to take into

account the bushfire risk.

[105] The permit application was not referred to the CFA during the permit

[11]

application process

but I issued an order on 18 September 2020 requiring

the permit application be referred to the CFA, given the nature of the use

proposed, the landscape within which the site sits and the fact the site is in a

designated Bushfire Prone Area.

[106] The CFA responded and raised no issues with the proposal or any

potential impacts upon it from a bushfire perspective.

[107] My order of 18 September 2020 also offered the opportunity for the

parties to respond to the comments of the CFA. A number of parties took the

opportunity to respond to the CFA’s comments and raised a number of

issues.

[108] I think it is fair to say that some of the issues raised in some of the

respondents’ submissions beyond what my order of 18 September 2020

invited, which is unacceptable. No leave was granted for such submissions

and I have disregarded them insofar as they relate to matters outside

bushfire considerations.

[109] However, my decision to uphold the council’s decision and that no

permit be granted is in no way based on matters relating to the impact of

bushfire on this proposal.

[110] Given I have decided to refuse to direct a permit be issued for other

reasons, it is unnecessary for me to make findings on this matter. However,

should another application be pursued for a similar proposal on the site,

matters pertaining to bushfire impact should be more closely explored.

81. The parties that oppose the grant a permit argue that the proposal has not adequately

responded to these remarks, as the matters relating to bushfire impact have not been

more closely explored since the previous decision. They make this submission on the

basis that a Bushfire Management Plan has not been prepared. While that is the case, I

have not been persuaded that the applicant has not more closely explored the matters

relating to bushfire impact on the review site. I make this finding as Mr Wallbrink has

prepared his landscape plan in consultation with the CFA, and has presented a

landscape plan to this proceeding that achieves the CFA requirements in relation to

reducing the bushfire risk to buildings and people via the landscape. This contrasts with

the previous proceeding, where the landscape plan that was previously before the

Tribunal clearly had not been prepared in accordance with the relevant CFA advice.

82. Policy at Clause 13.02-1S of the Frankston Planning Scheme provides the following

guidance for my decision making process concerning land that is designated as a

bushfire prone area.

When assessing a planning permit application for the above uses and

development:

• Consider the risk of bushfire to people, property and community infrastructure.

• Require the implementation of appropriate bushfire protection measures to address the

identified bushfire risk.

• Ensure new development can implement bushfire protection measures without

unacceptable biodiversity impacts.

83. I find that the proposed development is an appropriate response to this policy guidance,

for the following reasons.

a. The CFA and the applicant have both considered the risk of bushfire that is

presented to the review site, with the bushfire risk being identified as low due to

the positioning of the closest fire risk approximately 300 metres to the east of the

review site. This would require an easterly wind to blow the fire out of the

Frankston Reservoir Reserve towards the review site, with such a wind direction

being uncommon in Melbourne, particularly on days of high fire risk.

b. I am satisfied, for the reasons set out above, that appropriate bushfire protection

measures have been incorporated into the landscape plan that is proposed for the

review site. Additional bushfire protection measures can be incorporated into the

proposed building as part of the application process for a building permit.

c. Having regard to the extent of indigenous vegetation that is proposed for the site as

part of Mr Wallbrink’s landscape response, I am satisfied that bushfire protection

measures have been implemented in the landscaping response, without creating

any unacceptable biodiversity impacts.

84. A proposal to establish a new childcare centre within this bushfire prone area at 91

Overport Road, was recently considered by the Tribunal in the decision of Hope Early

Learning Centre Pty Ltd v Frankston CC [2021] VCAT 1393. In that proceeding the

Tribunal addressed this issue in the following manner.

[95] The review site is not located in area affected by a Bushfire Management

Overlay. Consequently, the relevant provisions and requirements of the

Overlay are not applicable to this application. These requirements include a

referral to the CFA.

[96] The applicant has however consulted with the CFA who provided

correspondence to the effect that the bushfire risk for this site is low and that

a BAL construction assessment conducted by a building surveyor at the

building permit stage, as is required for a site included in a bushfire prone

area, will afford adequate protection to address the low risk.

[97] I have however imposed a condition requiring a bushfire management

plan to be prepared ad approved by the responsible authority in consultation

with the CFA.

[98] Subject to the implementation of that condition I am satisfied the

proposal is acceptable.

85. I agree with this Tribunal decision that it is appropriate that a Bushfire Management

Plan be required as a condition of permit. As such a condition has not been drafted by

the Council, I will instead adopt the condition which was applied to the permit for the

childcare centre at 91 Overport Road.

WHAT CONDITIONS ARE APPROPRIATE?

86. A number of other matters about permit conditions were raised by the parties. With

respect to those matters, other than those already addressed above, I summarise my

conclusions as follows:

a. In addition to the conditions suggested by the parties, I have found it appropriate

to require the plans to be amended before endorsement to show signage indicating

the entry and exit points to the car park, and to show the removal of tree 35, as it is

the evidence of Mr Wallbrink that this tree is best to be removed and replaced with

new landscaping.

b. Ms Rainer requested a permit condition that the play areas be provided with lawn,

rather than artificial grass. I do not regard that such a condition is necessary in

order to achieve an appropriate landscaped outcome for the review site. For this

reason I will not apply the requested permit condition.

CONCLUSION

87. For the reasons given above, the decision of the responsible authority is set aside. A

permit is granted subject to conditions.

APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO 239/2021/P

LAND

137 Overport Road, Frankston South

WHAT THE PERMIT ALLOWS

In accordance with the endorsed plans:

• Use of the land for a childcare centre

• To construct a building and construct or carry out works

CONDITIONS

1. Before the use and/or development starts, amended plans to the satisfaction of the

Responsible Authority must be submitted to and approved by the Responsible Authority.

When approved, the plans will be endorsed and will then form part of the permit. The

plans must be substantially in accordance with the plans submitted to the VCAT

identified VCAT Amendment dated 3 May 2022 prepared by Mezzanine Property Group

Pty. Ltd but modified to show:

(a) Signage necessary to ensure safe operation of the entry only and exit only

access points to the car park.

(b) The removal of tree no 35, consistent that that depicted in the landscape plans

prepared by Stephen Wallbrink Issue A dated 3 June 2022.

(c) The deletion of bollards along part of the northern edge of the car park, so long

as the garden bed to the north of the car park can be graded in the manner

depicted in Drawing A.201 dated 22 June 2022 and Drawing A.702 dated 22 June

2022, and the height of the retaining wall on the northern edge of the car park can

be reduced in height in accordance with these plans.

(d) All trees growing on the site and on the adjoining properties within 3m of the

boundaries must be clearly illustrated on all relevant plans to demonstrate canopy

width, trunk location and clearly labelled in accordance with the Arboricultural

Impact Assessment Report prepared by All Trees Consulting Services Pty Ltd dated

3 June 2022 (Amendment 3.1) and clearly state whether the tree is to be retained

or removed.

(e) The Tree Protection Zone and Structural Root Zone for all trees to be retained

and the tree protection fence/ground protection locations must be illustrated on all

relevant plans and to incorporate updated TPZ areas as provided in the Expert

Witness Statement prepared by Ryder Arboriculture dated 2 June 2022.

(f) The proposed 1.5 metre concrete footpath shown along the frontage to Fontayne

Court to be constructed above grade and of permeable material within the Tree

Protection Zones of Trees 3, 4 and 5, unless the Council determines that one or

more of these trees should be removed due to their health and structure, and new

street trees planted.

(g) Provision of external storage shed to be located outside the TPZ of existing

trees.

(h) A break up of roof form so as to not provide for one-continuous roof formation

when viewed from southern boundary.

(i) A Landscape Plan in accordance with Condition 3.

(j) Tree Protection noted in accordance with Condition 7 on all relevant plans.

(k) A Waste Management Plan in accordance with Condition 15.

(l) A Construction and Environment Management Plan in accordance with

Condition 17.

(m) Location of any mechanical equipment in accordance with Condition 18.

(n) Location of outdoor lighting in accordance with Condition 21.

(o) Acoustic fencing in accordance with Condition 23.

(p) Area of fill to be setback a minimum of 4m from the centre of the base of Tree

20.

2. The use and/or development as shown on the endorsed plans must not be altered

without the prior written consent of the Responsible Authority.

3. Before the commencement of buildings and works, the landscape plan prepared by

Stephen Wallbrink Issue A dated 3 June 2022, must be submitted to and approved by

the Responsible Authority showing the following amendments:

(a) Any changes to the development plans.

(b) Tree protection requirements to be in accordance with the endorsed Tree

Management Protection plan.

(c) All tree stock used must be in accordance with AS2303-2015 Tree stock for

Landscape Use.

The endorsed landscape plans must achieve the following design requirements set by the

Country Fire Authority.

(d) No plants greater than 10cm in height placed within 3 metres of a window or

glass feature of the building and utilising paths and non-flammable ground covers

where possible.

(e) No tree canopies overhanging or touching any elements of the building.

(f) Canopy of trees separated by at least 2 metres.

(g) A clearance of at least 2 metres between lowest tree branches and ground level.

(h) At least 2 metre spacings between shrubs or clusters of shrubs.

4. The landscaping as shown on the endorsed landscape plan must be carried out and

completed to the satisfaction of the Responsible Authority before the occupation of the

development and/or commencement of the use or at such later date as is approved by

the Responsible Authority in writing.

5. The landscaping shown on the endorsed plans must be maintained to the satisfaction of

the Responsible Authority, including that any dead, diseased or damaged trees are to be

replaced. During the Declared Fire Danger Period, this includes grass should be short

cropped and leaves and vegetation debris removed.

6. A Tree Protection Management Plan (TPMP) prepared in accordance with Frankston

City Council’s ‘Arboricultural Report Writing Guide’ must be submitted by a qualified

and experienced arborist. The TPMP must sequentially outline all specific protection

requirements for all neighbouring trees.

The TPMP must be approved by the Responsible Authority prior to the commencement of any

works (including demolition, levelling / site scrapes, excavations, tree removal, deliveries and

/ or temporary buildings).

The TPMP must be in accordance with the Australian Standard AS4970: 2009 Protection of

Trees on Development Sites and detail all relevant measures to ensure that the trees remain

healthy and viable during and following construction:

(a) A site plan showing tree protection zones (TPZ), structural root zones (SRZ)

and the alignments of tree protection fencing and ground protection systems.

(b) Restricted and prohibited activities within TPZs.

(c) How the existing natural ground level within the TPZ portions of neighbouring

trees are to be protected and maintained.

(d) Key supervision and monitoring stages by the project arborist of the

development including pre-demolition, pre-construction and post construction

stages.

(e) Details & management of any TPZ encroachments including installation of root

sensitive footings and operation of machinery.

(f) Requirements for formalised ground protection where tree protection fencing is

impractical.

(g) Requirement and management of any canopy and or root pruning.

(h) Methods for installation of services and landscaping within the TPZs, including

any posts associated with the erection of shade sails.

(i) Final Certification of Tree protection template. The Final Certification Report

Template as required in the Tree Protection Management Plan must be completed

and submitted to the satisfaction of the Responsible Authority before the

occupation of the development and / or commencement of the use or at such later

date as is approved by the Responsible Authority in writing.

7. Tree protection must be carried out in accordance with the Australian Standard AS

4970-2009 Protection of trees on development sites and the endorsed Tree protection

Plan to the satisfaction of the Responsible Authority.

8. Provision of a Stormwater Detention System with a volume capable of retarding the 10

year ARI flow from the development site back to a 5 year ARI pre-development value to

the satisfaction of the Responsible Authority.

9. Prior to commencement of development construction detailed design plans and drainage

computations of the internal stormwater drainage system including the method of

connection to the existing Council drainage infrastructure are to be submitted and

approved to the satisfaction of the Responsible Authority.

10. Water Sensitive Urban Design principles (WSUD) are to be incorporated into the

drainage design, which may include but not be limited to the following components or a

combination thereof:

(a) On-site stormwater detention and rainwater tanks.

(b) Soil percolation

(c) Stormwater harvesting and Re-use of stormwater for garden watering, toilet

flushing, etc.

(d) On-site ‘bio-treatment’ to reduce dissolved contaminants and suspended solids.

11. Vehicle crossings shall be constructed to Frankston City Council's standards and

specifications to the satisfaction of the Responsible Authority.

12. All disused vehicle crossings shall be removed and the area reinstated to kerb and

channel and landscaped to the satisfaction of the Responsible Authority.

13. Where the development involves work on or access to Council controlled land including

roads, reserves and right of way, the owner, operator and their agents under this permit

must at all times take adequate precautions to maintain works to the highest public

safety standards, to the satisfaction of the Responsible Authority.

14. Precautions must include, appropriate signage to AS 1743 Road Works Signing Code of

Practice, the provision of adequate barricading of works, including trenches of Service

Authorities and any other road openings, sufficient to ensure public safety.

15. All relevant permits must be obtained from Council for works within the existing road

reserves, in addition to the planning permit.

16. Before the development starts, a waste management plan (WMP) prepared by a suitably

qualified person and to the satisfaction of the Responsible Authority must be submitted

to and approved by the Responsible Authority. When approved, the WMP will be

endorsed and from part of this permit. The plan must detail waste collection must be

undertaken by private contractor, time and frequency of garbage collection, all to the

satisfaction of the Responsible Authority.

17. All waste collection and deliveries may only take place between the following hours:

(a) 7am to 7pm, Monday to Friday; and

(b) 8am to 1pm, Saturday.

18. All waste collection must be undertaken in accordance with the EPA Victoria Publication

1254 Noise Control Guidelines.

19. Prior to the commencement of any stage of the development a Construction

Management Plan must be submitted to and approved by the Responsible Authority.

When approved the plan will be endorsed to form part of the permit. Any plans

submitted must be consistent with all other documents approved as part of this permit.

The information must be drawn to scale with dimensions and three copies must be

provided. The Plan is to include details of the following:

(a) Contact Numbers of responsible owner/contractor including emergency/24

hour mobile contact details.

(b) Identification of possible environmental risks associated with development

works.

(c) Response measures and monitoring systems to minimise identified

environmental risks, including but not limited to creek protection, vegetation

protection, runoff, erosion, dust, litter, noise and light.

(d) Location and specifications of sediment control devices on/off site.

(e) Location and specification of surface water drainage controls.

(f) Proposed drainage lines and flow control measures.

(g) Location and specifications of fencing for the protection of trees and/or

vegetation as required by the permit.

(h) Location of all stockpiles and storage of building materials.

(i) Location of parking for site workers and any temporary buildings or facilities.

(j) Details to demonstrate compliance with relevant EPA guidelines.

(k) Target of recycling and re-using a minimum of 80% of construction and

demolition waste by weight.

(l) Hours during which construction activity will take place.

20. Air-conditioning plant, compressors and exhaust fans must be located so as to minimise

adverse amenity impacts on abutting and nearby residential properties, to the

satisfaction of the Responsible Authority.

21. Outdoor lighting, external sign lighting and building illumination must at all times be

designed, baffled and located to the satisfaction of the Responsible Authority to prevent

any adverse effect on adjoining land.

22. All fences must be maintained in sound condition, to the satisfaction of the Responsible

Authority.

23. Before the use allowed by this permit starts, an acoustic fence must be erected along the

southern and eastern boundaries where it adjoins residential properties. The acoustic

fencing and all other recommendations must be carried out and completed and any

recommendations must be implemented in accordance with the Statement of Evidence

dated 2 June 2022 prepared by Enfield Acoustics PTY LTD by to the satisfaction of the

2

Responsible Authority, including a minimum cladding weight of at least 15kg/m .

24. No more than 95 children may be present on the premises at any one time.

25. The use may only operate only between the hours of 6:30am to 6:30pm (Monday to

Friday).

26. The amenity of the area must not be detrimentally affected by the development or use

including through the:

(a) Transport of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour,

steam, soot, ash, dust, waste water, waste products, grit or oil.

(d) Presence of vermin.

27. Noise levels emanating from the premises must not exceed those required to be met

under Environment Protection Regulations 2021 and Noise Limit and Assessment

Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and

Entertainment Venues (Publication 1826, Environment Protection Authority, March

2021), or superseding legislation.

28. Any form of public address system or sound amplification equipment used on the

premises must not be audible beyond or outside the premises.

29. Once the development has started it must be continued and completed to the

satisfaction of the Responsible Authority.

30. Before the use commences a bushfire management plan must be submitted to and

approved by the responsible authority. The responsible authority’s approval of the

bushfire management plan must have regard to any comments provided by the CFA.

31. This permit as it relates to use will expire if the use does not commence within two (2)

years after the development is completed.

In accordance with section 69 of the Planning and Environment Act 1987, an application may

be submitted to the responsible authority for an extension of the period referred to in this

condition.

32. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the issue date of this permit.

(b) The development is not completed within four years of the issue date of this

permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may

be submitted to the responsible authority for an extension of the periods referred to in this

condition.

– End of conditions –

[1]

This is the Land description from the previous Tribunal decision of ASL Alliance No. 2 Pty

Ltd v Frankston CC [2020] VCAT 1276

[2]

The submissions and evidence of the parties, any supporting exhibits given at the hearing

and the statements of grounds filed have all been considered in the determination of the

proceeding. In accordance with the practice of the Tribunal, not all of this material will be

cited or referred to in these reasons.

[3]

Amendment C141 to the Frankston Planning Scheme was gazetted on 10 February 2022.

[4]

Paragraph 112 of Ms Morland’s written evidence.

[5]

Paragraph 200 of Ms Morland’s written evidence.

[6]

Paragraphs 111 to 113 of the decision of ASL Alliance No. 2 Pty Ltd v Frankston CC [2020]

VCAT 1276.

[7]

Pages 38 & 39 of Council’s written submission.

[8]

The size of the car park has been reduced from 665 square metres as noted on the Proposed

Floor Plan dated 28 February 2020 (Revision C) to 569 square metres as noted on Drawing

A.201 of the set of plans substituted at the commencement of this proceeding.

[9]

As set out at Section 3.1 of that document.

[10]

Noting that none of the parties in this proceeding disputed the suitability of adopting this

target or the relevance of the Association of Australasian Acoustical Consultants Guideline

for Child Care Centre Acoustic Assessment, Version 3.0 (September 2020).

[11]

There is no requirement in the planning scheme to do so.